Citation Nr: 0306120
Decision Date: 03/31/03 Archive Date: 04/08/03
DOCKET NO. 99-09 306 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to an increased rating for psychoneurosis,
anxiety reaction, which is currently evaluated as 70 percent
disabling.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Service
ATTORNEY FOR THE BOARD
M.C. Peltzer, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1942 to
January 1946.
The current appeal comes before the Board of Veterans'
Appeals (Board) from an October 1998 rating decision issued
by the Atlanta, Georgia, Regional Office (RO) of the
Department of Veterans Affairs (VA) which denied an increased
rating for the veteran's service-connected anxiety condition.
The Board remanded this matter in September 2000 for
clarification and further development. The September 2002
Supplemental Statement of the Case (SSOC) reflects that the
veteran's 50 percent disability rating was increased to 70
percent and that a total disability rating was granted based
on individual unemployability. This matter is again before
the Board for appellate review.
As per his amended substantive appeal, the veteran requested
a hearing before a Member of the Board, sitting at the RO.
The requested hearing was scheduled for November 1999, and
the veteran was notified of the time, date, and location by
letter in October 1999. The veteran failed to report for his
scheduled hearing. Accordingly, his request for a hearing
is considered as withdrawn. See 38 C.F.R. § 20.704(d)
(2002).
FINDINGS OF FACT
1. All evidence requisite for an equitable disposition of
the veteran's claim has been developed and obtained, and all
due process concerns have been addressed.
2. The veteran's anxiety condition is manifested by serious
symptoms such as excessive worry, a depressed and anxious
mood, a tearful affect and disturbed sleep and complaints of
memory loss. He denied suicidal and homicidal ideations,
denied hallucinations and delusions, was properly groomed,
had proper hygiene, was oriented to time and place, had
logical thought processes, had fair insight and judgment, and
was articulate and logical in his speech
CONCLUSION OF LAW
The criteria for a disability rating in excess of 70 percent
for psychoneurosis, anxiety reaction, have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 2002); 38 C.F.R.
§§ 4.3, 4.7, 4.130, Diagnostic Code 9400 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duty to Notify and Assist
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000). This law redefines the
obligations of VA with respect to the duty to assist and
includes an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits.
VA must notify the claimant of evidence and information
necessary to substantiate his claim and inform him whether he
or VA bears the burden of producing or obtaining that
evidence or information. 38 U.S.C.A. § 5103(a) (West Supp.
2002); 38 C.F.R. § 3.159(b) (2002); Quartuccio v. Principi,
16 Vet. App. 183 (2002). The veteran was notified of the
laws, regulations, and evidence pertinent to his increased
rating claim via the April 1999 Statement of the Case (SOC),
the September 2000 Board Remand, and the September 2002 SSOC.
The Board finds that VA's duty to notify the claimant of the
evidence necessary to substantiate his claim has been
satisfied.
VA attempted to inform the veteran of which information and
evidence he was to provide to VA and which information and
evidence VA would attempt to obtain on his behalf. The
September 2000 letter sent by the RO, as per the September
2000 Board remand, asked the veteran to specify where he had
received treatment and solicited releases to obtain any
identified medical records. The letter informed the veteran
that the RO would obtain any identified records.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West Supp. 2002); 38 C.F.R. §
3.159(c), (d) (2002). The veteran was afforded psychiatric
evaluations in March 1999 and October 2000. See 38 C.F.R.
§ 3.159(c)(4) (2002). The resulting evaluation reports have
been obtained. Additionally, in September 2000
correspondence, the veteran identified that he received all
medical treatment from the VA medical center in Augusta ,
Georgia. His VA medical records have been obtained and
associated with his claims file. The evidence of record
reflects that he currently is not employed and receives
Social Security benefits for retirement, not disability,
purposes. The December 2002 statement of accredited
representative in appealed case reflects, in essence, that
the veteran was satisfied with the development actions taken
by the RO (as directed by the September 2000 Board Remand).
Therefore, the Board concludes that no further assistance to
the veteran regarding development of evidence is required,
and would be otherwise unproductive. See 38 U.S.C.A.
§ 5103A(b)(3) (West Supp. 2002); McKnight v. Gober, 131 F.3d
1483 (Fed. Cir. 1997).
II. Increased Rating Claim
In evaluating service-connected disabilities, the Board looks
to functional impairment. The Board attempts to determine
the extent to which a service-connected disability adversely
affects the ability of the body to function under the
ordinary conditions of daily life, including employment.
38 C.F.R. §§ 4.2, 4.10 (2002).
The current 70 percent rating in effect for the veteran's
anxiety contemplates occupational and social impairment with
deficiencies in most areas, such as work, school, family
relations, judgment, thinking, or mood, due to such symptoms
as suicidal ideation; obsessional rituals that interfere with
routine activities; speech that is intermittently illogical,
obscure, or irrelevant; near-continuous panic or depression
affecting the ability to function independently,
appropriately, and effectively; impaired impulse control,
such as unprovoked irritability with periods of violence;
spatial disorientation; neglect of personal appearance and
hygiene; difficulty in adapting to stressful circumstances,
including work or a worklike setting; and inability to
establish and maintain effective relationships. 38 C.F.R.
§ 4.130, Diagnostic Code 9400 (2002).
A 100 percent disability rating contemplates total
occupational and social impairment, due to such symptoms as:
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation, or own name. 38 C.F.R.
§ 4.130, Diagnostic Code 9400 (2002).
The symptoms listed in Diagnostic Code 9400 are not intended
to constitute an exhaustive list, but rather serve as
examples of the type and degree of the symptoms, or their
effects, that would justify a particular rating. See
Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there
is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (2002). Any reasonable doubt
regarding the degree of disability will be resolved in favor
of the claimant. 38 U.S.C.A. § 5107(b) (West Supp. 2002); 38
C.F.R. § 4.3 (2002). When all the evidence is assembled, the
determination must be made as to whether the evidence
supports the claim or is in relative equipoise, with the
veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. Gilbert v. Derwinski, 1 Vet.
App. 49, 55 (1990).
Summary of the Evidence
The veteran initiated his current increased rating claim in
September 1998. He also submitted a statement from his
pastor, dated in June 1998, with his September 1998 claim.
The June 1998 statement reflects that the pastor indicated
that the veteran's anxiety condition seemed to have gotten
worse in spite of medicine and continued treatments. The
statement also reflects that the pastor indicated that he had
been unable to place the veteran in a voluntary position due
to his condition.
A December 1998 urology note reflects that the veteran had
obtained a job since his November 1998 surgery.
A January 1999 VA progress note reflects that the veteran
spent, and enjoyed, the holidays with his children and
grandchildren. The progress note also reflects that he was
alert, neatly groomed, and was able to relate to the examiner
during the interview even though he remained anxious. The
progress notes indicates that he did not suicidal or
homicidal ideations and his judgment was fair.
A March 1999 psychiatric evaluation report reflects that the
veteran indicated he would have "spells" where he would get
upset, his heart would race, his face would get red, he felt
like he was smothering, but that he had difficulty relaying
to the examiner the frequency or precipitation of such
attacks. The report reflects that he merely indicated
several times a month. The evaluation report also reflects
that the veteran takes medications for his anxiety, he felt
nervous most of the time and worried "quite a bit," he had
trouble falling asleep, he complained of restlessness, he was
very involved in church functions and boy scout related
activities. The evaluation report indicates that mental
status examination revealed that the veteran was very
fidgety, he was well groomed, he looked tense, no
hallucinations, delusion, paranoia or grandiosity, and that
he denied both suicidal and homicidal ideation. The report
shows that the veteran had normal intellectual function, his
insight and judgment were fair, but he did get tearful during
one point during the interview. The report reflects that his
orientation to time was 5 out of 5, immediate recall was 3
out of 3 and recent recall was 1 out of 3 (although the
examiner noted that a fair amount of time had passed between
when the veteran was asked to recall the words and when he
was given them). The report contains diagnoses of
generalized anxiety disorder and panic disorder with
agoraphobia and a Global Assessment of Functioning (GAF)
score of 55.
In March 1999, the veteran was also afforded an examination
in conjunction with an increased rating claim not on appeal.
The examination report contains an assessment of anxiety and
indicates that the veteran was alert, oriented to time, place
and person, had a normal memory, appeared anxious, and showed
signs of tension. The report also reflects that his
responses to social and occupation capacity were apparently
diminished secondarily to his anxiety and he was unable to
handle his own funds.
A March 1999 VA progress note reflects that the veteran was
alert, pleasant, and neatly dressed. The progress note
further reflects that his judgment was fair, he denied
suicidal and homicidal ideations, and he was tearful when
discussing limitations imposed by his anxiety.
A November 1999 VA neuroscience social work note reflects
that the veteran spent the bulk of his time doing yardwork,
attending church, and in his workshop. The note further
reflects that he had five supportive children and a
supportive wife.
The veteran was afforded another psychiatric evaluation in
October 2000. The evaluation report reflects that the
veteran had not worked since 1988 and that the veteran
indicated that he worried all the time, had excessive
anxiety, and had disturbed sleep. The report reflects that
he stated that he could not remember things, had difficulty
focussing, and liked to socialize but stayed home most of the
time. The report reflects that the veteran had been married
to his "high school sweetheart" for 55 years. The
evaluation report further reflects that he was properly
groomed, had good hygiene, was alert and oriented, arrived on
time for his session with the examiner, and was logical and
articulate in his speech. The report also shows that he was
extremely restless and fidgety during the entire session with
the examiner, his fund of general knowledge was adequate, and
was able to recall three out of three objects in one minute
and one out of three in five minutes. The report reflects
that the examiner indicated that the veteran's dominant mood
was depressed and anxious, his affect was tearful at times,
thought processes were logical and goal directed, and insight
and judgment were fair. The report reflects that the veteran
denied auditory and visual hallucinations, delusional
thoughts, suicidal ideations, and homicidal ideations. The
evaluation report contains diagnoses of generalized anxiety
disorder and dysthymic disorder. The report reflects that
the examiner noted that the veteran's symptoms were serious
and indicated a GAF score of 45 to 50.
An August 2002 VA medical record reflects a negative screen
for major depression. An August 2002 VA nursing note
reflects that the veteran was alert and oriented to time,
place and person. An August 2002 VA social work note
reflects that the veteran and his wife made a self-referral
to the social work office, he had had a heart attack four
weeks previously, and he presented with anxiety related to
his health problems.
Legal Analysis
During the pendency of the veteran's appeal, his disability
rating for his service-connected anxiety condition was
increased from 50 percent to 70 percent. The question to be
answered by the Board is whether the veteran's service-
connected disability warrants a 100 percent disability
rating. See AB v. Brown, 6 Vet. App. 35 (1993). The Board
must answer in the negative.
The evidence reveals that the veteran's anxiety condition is
manifested by excessive worry, a depressed and anxious mood,
a tearful affect, and disturbed sleep. The evidence reflects
a GAF score of 45 to 50, which denotes serious symptoms on a
hypothetical continuum of mental health-illness. See
Diagnostic And Statistical Manual Of Mental Disorders (4th
ed. 1994). The evidence also reveals that the veteran did
not score perfect scores on memory recall exercises during
evaluations and that he complained of memory loss.
In contrast, the evidence consistently reveals that the
veteran did not have homicidal ideations, suicidal ideations,
persistent delusions, persistent hallucinations, gross
impairment in his thought processes, gross impairment with
communication, an inability to perform the activities of his
daily living (including the maintenance of personal hygiene),
disorientation to time, disorientation to place, or memory
loss of the names of close relatives, his occupation, or even
his own name. The manifestation of the symptoms just
described is reflective of the type and degree of symptoms
that approximate the criteria for a 100 percent disability
rating for anxiety. See 38 C.F.R. § 4.130, Diagnostic Code
9400 (2002). In the instant case, the evidence consistently
reveals that the veteran denied suicidal and homicidal
ideations, denied hallucinations and delusions, was properly
groomed, had proper hygiene, was oriented to time and place,
had logical thought processes, and had fair insight and
judgment. Furthermore, the evidence reveals that the veteran
was articulate and logical in his speech. Accordingly, the
Board finds that the veteran's service-connected anxiety
condition is not manifested by the type and degree of
symptoms such that his service-connected disability picture
more closely approximates the criteria for a 100 percent
disability rating. See Mauerhan v. Principi, 16 Vet. App.
436 (2002).
As such, the Board finds that the preponderance of the
evidence is against the veteran's claim and that an increased
rating is not warranted. See 38 C.F.R. § 4.7 (2002). The
Board notes that when the preponderance of the evidence is
against a claim, the benefit-of-the-doubt rule is not for
application. See 38 U.S.C.A. § 5107 (West Supp. 2002);
38 C.F.R. § 4.3 (2002).
Finally, the Board has no reason to doubt that the veteran's
service-connected anxiety condition, which is manifested by
serious symptoms, may limit his efficiency in certain tasks.
This alone, however, does not present an exceptional or
unusual disability picture and is not reflective of any
factor that takes the veteran outside of the norm. See Moyer
v. Derwinski, 2 Vet. App. 289, 293 (1992); see also Van Hoose
v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the
disability rating itself is recognition that industrial
capabilities are impaired). Accordingly, the Board finds
that the veteran's disability picture does not warrant
referral for the assignment of an extraschedular rating
pursuant to 38 C.F.R. § 3.321(b) (2002).
(CONTINUED ON NEXT PAGE)
ORDER
An increased rating for psychoneurosis, anxiety reaction, is
denied.
C.P. RUSSELL
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.